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State high court would likely find implied private right of action in Pennsylvania Medical Marijuana Act

By Kathleen Kapusta, J.D.

The court further found an employee who was discharged after failing a drug test because her medical marijuana card had expired plausibly alleged entitlement to relief under the MMA.

In an issue of first impression in the Circuit, a federal court in Pennsylvania held that the state’s high court would likely find that Pennsylvania’s Medical Marijuana Act (MMA) implies a private right of action for employees alleging discrimination under Section 2103(b)(1). Accordingly, the court refused to dismiss an MMA discrimination claim brought by an employee who alleged she legally purchased and used medical marijuana, disclosed her status as a cardholder, failed a drug test at work, and then was fired the same day she recertified her medical marijuana card (Hudnell v. Thomas Jefferson University Hospitals, Inc., September 25, 2020, Pappert, G.).

Certified. Two years after she was hired by Thomas Jefferson University Hospitals as a security analyst, the employee began experiencing significant back pain and in August 2018, she visited an internal medicine specialist who certified her for medical marijuana use. After spinal surgery in July 2019, the employee took a leave of absence.

Drug test. In October, she asked to return to work but because she had been on leave for over 90 days, she was required to take a drug test. When she reported for her test on October 11, she provided her medical marijuana card, which had expired in August. She told the nurse administering the test that she had an appointment on October 16 to get recertified. Despite being recertified on October 16 and completing the card renewal process on October 20, she was fired because she did not have a valid medical marijuana card at the time of the drug test.

Dr.’s letter. In response, her doctor wrote a letter to Jefferson’s HR partner explaining that he had certified the employee for medical marijuana use, she was certified to purchase up to a month’s supply until her card expired on August 21, 2019, and he expected any medical marijuana would remain in her system for two months. While the administering nurse speculated the employee may have last used marijuana when her card was valid, Jefferson nonetheless upheld her termination.

Lawsuit. The African-American employee subsequently sued, alleging that Jefferson did not fire a white male employee after he failed a drug test even though he was not certified to use medical marijuana and that Jefferson has accommodated medical marijuana use by white employees. She brought claims under various federal and state statutes and Jefferson moved to dismiss her state law claims. Granting the motion in part, the court first found that the employee failed to exhaust her remedies as to her Pennsylvania Human Relations Act and Philadelphia Fair Practices Ordinance and thus those claims were dismissed without prejudice.

MMA. Turning to her claim under MMA Section 2103(b)(1), which provides that “No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana,” the court observed that “Whether the MMA implies a private right of action for employees alleging discrimination under Section 2103(b)(1) is an issue of first impression in our Circuit.”

Three-part test. Noting that the Pennsylvania Supreme Court applies a three-part test, derived from its 1975 Cort v. Ash decision, to determine whether a state statute implies a private right of action, the court turned first to the second Cort factor: whether there is any indication of legislative intent, explicit or implicit, to create or such a remedy. Finding the text and context of the statute implicitly suggest legislative intent to create a private right of action, the court pointed out that while the MMA authorizes agency enforcement of certain of its provisions, it does not authorize agency enforcement of Section 2103(b)(1). Without any other enforcement mechanism, said the court, the state high court would likely agree that “the mandate contained in Section 2103(b)(1) will ring hollow.”

Although Jefferson argued that the state health department had the authority to enforce the provision at issue through civil penalties pursuant to P.S. § 10231.1308(b)—which provides that “In addition to any other remedy available to the department, the department may assess a civil penalty for a violation of this act, a regulation promulgated under this act or an order issued under this act or regulation as provided in this subsection”—the court found that when read in context, “Section 1308(b) more reasonably applies only to parties who are participating in the Medical Marijuana Program established by the Act (i.e., operators of a medical marijuana organization).” Further, not only did Jefferson fail to show that the health department had issued civil penalties to employers who had violated Section 2103(b)(1), it did not identify any regulations promulgated by the department for enforcing that section. Thus, in the court’s opinion, the state high court would likely interpret this failure to delegate as signaling the General Assembly’s intent to imply a private right of action.

Remaining factors. Turning to the first factor—whether the statute creates a right in favor of the plaintiff—the court, noting the General Assembly’s intent to protected employees from discrimination in Section 2103(b)(1), found the legislature crafted Section 2103(b)(1) for the special benefit of employees with medical marijuana cards. As to the third factor—is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff—the court explained that in enacting the MMA, the General Assembly intended to provide “‘a program of access to medical marijuana that balances the need of patients to have access to the latest treatments with the need to promote patient safety,’ to furnish ‘a safe and effective method of delivery of medical marijuana to patients,’ and to promote ‘high quality research into the effectiveness and utility of medical marijuana.’” And to ensure medical marijuana patients can realize those benefits without fear of adverse employment actions, the legislature included Section 2103(b)(1), the court observed, finding a private remedy to be consistent the purpose and spirit of the MMA.

For these reasons, the court concluded that the Pennsylvania Supreme Court would find that the General Assembly intended to create private cause of action for Section 2103(b)(1). Finding further that the employee plausibly alleged an entitlement to relief under MMA Section 2103(b)(1), the court denied Jefferson’s motion to dismiss as to this claim.

Wrongful discharge. The employee’s wrongful discharge in violation of public policy claim failed, however, as there was no clear indication from Pennsylvania courts that a discharge in violation of the MMA threatens a clear mandate of public policy and the employee had a statutory remedy available in the MMA.